NC GOP Mum On Changing Balance Of Supreme Court

On election night 2016, statewide races in North Carolina played out largely as expected. But one race caught nearly everyone off guard. Longtime incumbent, Judge Bob Edmunds, the Republican's preferred candidate, was soundly defeated in the race for State Supreme Court against Judge Mike Morgan, the Democrat's choice. This dramatic upset shifted the entire court balance from a 4-3 conservative majority to Democratic control. Nearly six weeks later, there are concerns that it may not stay that way.

Governor Pat McCrory will bring back lawmakers for a special session of the General Assembly on Tuesday to pass disaster relief measures for people affected by Hurricane Matthew and the wildfires in Western North Carolina. But the Governor's call also allows for “any other matter” to be addressed. This open-ended agenda has Democrats keeping an eye out for another possible discussion item: court packing. That's a rare, but legal maneuver in North Carolina where the governor can appoint two extra judges before leaving office, in this case, effectively swinging the court back into conservative control.

Rob Scofield with the progressive-leaning North Carolina Policy Watch says, “You know, it would be a shocking move ultimately if lawmakers went down this road.” But he adds that even though the proposition sounds outlandish, multiple news outlets have reported it's an option that is being discussed among GOP lawmakers.

“Frankly,” he says, “given the experience we had with House Bill 2 last year in which we had a dramatic and incredibly damaging legislative proposal taken from the back of an envelope to state law in about twelve hours that no one had seen before, we wouldn't put it past these folks.”

GOP legislators have been coy on the idea, saying on the one hand it's not on the agenda, but refusing to rule it out.

As it stands now, North Carolina is poised to become the only state in the south with a democratic Supreme Court and democratic governor.

And Wake Forest University Professor John Dinan says the stakes in this case for both parties are extremely high for another reason: whichever party controls the state Supreme Court has a major say in redistricting.

“And that's of course the big prize in North Carolina,” says Dinan. “Who gets to draw up the legislative districts and who gets to draw up the congressional districts? And so it's likely to be the case that there will be some real consideration given to folks in the legislature of which party do we want controlling the redistricting.”

Partisan court packing does have precedent. Back in 2000, when the Democrats controlled the legislature and governor's mansion, then-Governor Jim Hunt expanded the state Court of Appeals by three members before leaving office at the end of that year.

Dinan says there's disagreement on whether that Court of Appeals expansion was done for partisan gain or simply to address the rising number of cases before the court. That was the argument used earlier this year by governors in Georgia and Arizona prior to signing bills that expanded their respective courts.

“In North Carolina it's not clear that that would be the argument that would hold water in terms of a need for a response to increasing case load,” says Dinan. “It's unlikely that that would be the motivation for such a move, and it's unlikely that would be a persuasive justification.”

In fact, state Supreme Court cases have been declining over the past decade in NC, from 785 filings in 2007, to 730 in 2014.

Given that reality, expanding the court will come with short-term political costs according to UNC-Greensboro Lecturer Thom Little. He says packing the court and thwarting the will of the voters would likely lead to statewide and national blowback. He suspects it's a challenge Republicans in the legislature are currently weighing.

“But it doesn't matter how angry voters get at Republicans,” says Little. “I don't think [Democrats] can mathematically take control of the general assembly. So realistically, the chance to make the Republicans pay would be four years down the road in 2020. And there will be so many other things that happen between now and then, I suspect that this would get lost.”

According to Little, the problem for Democrats in the general assembly is three-fold: voting districts drawn to favor Republicans mean there's little chance of a shift in power there, plus there's at least one year of waiting time before voters can actually voice their objections at the ballot box. And then, of course, with an open agenda at this week's session, there's the not knowing.

Republican legislative leaders continue to downplay the idea of court packing. But they've also remained mum on whether or not it is a real possibility. GOP executive Dallas Woodhouse declined multiple interview requests with WFDD. His one-line email reply reads: “This is not a news story.”

But, when pressed by reporters last month, Republican Senator Bob Rucho would not rule out the possibility. And on Monday, Woodhouse did the same.